Home » Rethinking the Role of Federal Law in Private Cleanup Cost Disputes

TITLE

Rethinking the Role of Federal Law in Private Cleanup Cost Disputes

AUTHOR(S)

Aronovsky, Ronald G.

PUB. DATE

February 2006

SOURCE

Ecology Law Quarterly;2006, Vol. 33 Issue 1, p1

SOURCE TYPE

Academic Journal

DOC. TYPE

Abstract

ABSTRACT

Voluntary cleanups are essential to addressing the hundreds of thousands of contaminated sites that still require remediation in the United States, as government agencies lack the resources to conduct these cleanups themselves or to file thousands of lawsuits compelling private party cleanups. Most sites have been contaminated by the acts of more than one potentially responsible party (PRP). For two decades, PRPs voluntarily cleaned up sites assuming they could then seek cleanup cost contribution from other PRPs under CERCLA (the "Superfund" statute). The December 2004 US. Supreme Court decision in Cooper Industries, Inc. v. Aviall Services, Inc. caused a sea change in environmental law, upsetting the reliance interests of regulatory agencies and PRPs by holding that a PRP in most situations cannot sue other PRPs for their fair share of cleanup costs under CERCLA 's contribution provision. After Aviall, federal law may no longer play any role in most private cleanup cost disputes. This Article examines the federalism consequences of the Aviall decision. The Article explores whether federal or state law should serve as the primary rule of decision in private cleanup cost disputes, concluding that a uniform federal rule of decision remains superior to the incoherent patchwork quilt of current state law remedies as a tool for facilitating voluntary cleanups. It further concludes that a private CERCLA cleanup cost remedy should provide a "safety net" assuring the availability of cleanup cost contribution rights to PRPs in every state without broadly preempting potentially available state law remedies.

ACCESSION #

21294711

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